Buti, Tony --- "Kruger and Bray and the Common Law" [1998] UNSWLawJl 15; (1998) 21(1) UNSW Law Journal 232
Kruger And Bray And The Common Law
TONY BUTI[*]
I. INTRODUCTION
The tabling in Commonwealth Parliament on 25 May 1997 of the Human Rights
and Equal Opportunity Commission (HREOC) report of the National Inquiry into
the Separation of Aboriginal and Torres Strait Islander Children from their
Families,[1] titled Bringing
Them Home,[2] focused public
attention on this nation’s history of removing Indigenous children from
their families. Two months later, the
removal issue received further media
attention when the High Court of Australia handed down its decision in Kruger
& Ors v The Commonwealth of Australia; Bray & Ors v The
Commonwealth of Australia.[3] The
cases concerned the constitutional validity of the Aboriginals Ordinance
1918 (NT),[4] which provided the legal
basis for the removal of Indigenous children from families and communities in
the Northern Territory. The
plaintiffs were unsuccessful.
This article provides a brief case note on the Kruger and Bray cases; then follows a comment on the question commonly asked by sections of the media: do the Kruger and Bray decisions affect common law litigation in the area?[5]
This article provides a brief case note on the Kruger and Bray cases; then follows a comment on the question commonly asked by sections of the media: do the Kruger and Bray decisions affect common law litigation in the area?[5]
II. KRUGER AND BRAY
The Ordinance under challenge appointed the Chief Protector of Aboriginals
as the legal guardian of every Aboriginal child in the
Northern Territory. The
Ordinance gave a discretion to the Chief Protector to undertake the care,
custody and control of any Aborigines.
Further, the Ordinance authorised the
Chief Protector to cause an Aborigine to be kept within the boundaries of any
reserve or Aboriginal
institution.[6]
The plaintiffs were Aborigines from the Northern Territory, who had been removed from their parents and families when they were young children. They had been detained in Aboriginal institutions or reserves. The removals had occurred between 1925 and 1949 and the last detention had ended in 1960.
The plaintiffs claimed declaratory relief and damages against the Commonwealth for being removed from their families and communities. The plaintiffs challenged the constitutional validity of ss 6, 7, 16 and 67 of the Ordinance, which allowed Indigenous children to be removed from the families and communities, and were part of a legislative regime which subjugated Indigenous people in the Northern Territory. The plaintiffs also sought a declaration of constitutional invalidity of s 13(1) of the Northern Territory (Administrative) Act 1910 (Cth), to the extent that it purported to authorise those impugned provisions of the Ordinance.
The basis of the plaintiffs’ challenge was that the removals infringed certain constitutional rights or freedoms. Those rights or freedoms were contained in paragraph 24 of the Amended Statement of Claim.[7] Justice Gaudron succinctly summarised the plaintiffs’ arguments of invalidity as follows:
The plaintiffs were Aborigines from the Northern Territory, who had been removed from their parents and families when they were young children. They had been detained in Aboriginal institutions or reserves. The removals had occurred between 1925 and 1949 and the last detention had ended in 1960.
The plaintiffs claimed declaratory relief and damages against the Commonwealth for being removed from their families and communities. The plaintiffs challenged the constitutional validity of ss 6, 7, 16 and 67 of the Ordinance, which allowed Indigenous children to be removed from the families and communities, and were part of a legislative regime which subjugated Indigenous people in the Northern Territory. The plaintiffs also sought a declaration of constitutional invalidity of s 13(1) of the Northern Territory (Administrative) Act 1910 (Cth), to the extent that it purported to authorise those impugned provisions of the Ordinance.
The basis of the plaintiffs’ challenge was that the removals infringed certain constitutional rights or freedoms. Those rights or freedoms were contained in paragraph 24 of the Amended Statement of Claim.[7] Justice Gaudron succinctly summarised the plaintiffs’ arguments of invalidity as follows:
• the Ordinance was not a law for the government of the Northern
Territory and, thus, not authorised by s 122 of the Constitution;
• it exceeded the legislative power of the Commonwealth in that that
power, whether conferred by s 122 or otherwise, does not extend to laws
destroying racial or ethnic groups, their language or culture or to laws
authorising genocide
and crimes against humanity;
• it purportedly conferred judicial power contrary to the provisions of Chapter III of the Constitution;
• it purportedly conferred judicial power contrary to the provisions of Chapter III of the Constitution;
• it was contrary to an implied constitutional freedom from removal
and detention without due process of law; it was contrary
to an implied
constitutional right and/or guarantee of equality;
• it was contrary to an implied constitutional right to and/or
guarantee of freedom of movement and association;
• it was contrary to s 166 of the
Constitution.[8]
The plaintiffs claimed that, by reason of the asserted constitutional invalidity of the impugned provisions, they were entitled to recover damages from the Commonwealth. They argued that they were entitled to damages for causes of action recognised by the common law (tort of wrongful imprisonment and deprivation of liberty) and for breach of their constitutional rights. The plaintiffs sought damages both with respect to the losses they had suffered in personal, cultural, spiritual and financial terms and in terms of their possible entitlements to participate in land claims.[9]
The plaintiffs claimed that, by reason of the asserted constitutional invalidity of the impugned provisions, they were entitled to recover damages from the Commonwealth. They argued that they were entitled to damages for causes of action recognised by the common law (tort of wrongful imprisonment and deprivation of liberty) and for breach of their constitutional rights. The plaintiffs sought damages both with respect to the losses they had suffered in personal, cultural, spiritual and financial terms and in terms of their possible entitlements to participate in land claims.[9]
III. THE DECISION
A. Section 122: The Power to Make Laws for the Government of a Territory
Chief Justice Brennan and Toohey, Gaudron, Dawson and McHugh JJ all agreed
that the Ordinance is a ‘law for the government of
a territory’, and
that the plaintiffs argued the wrong test in this regard (the nexus test being
the relevant test, as opposed
to the proportionality test
asserted).[10] Justice Gaudron
stated that although s 122 has a purposive element, that purposive element was
not an issue in the case.[11]
Accordingly, the test of proportionality of the legislation had no application.
Thus, the relevant test in the case was whether
the legislation had sufficient
nexus with the Territory. As the law operated only on people, places and events
in the Northern Territory,
the nexus was satisfied.
B. Separation of Powers - Justified Power Only Able to be Conferred on Chapter III Courts
Justices Dawson, McHugh, Toohey, Gaudron and Gummow all agreed that the
power to detain Aboriginal children in custody (for the purpose
of their
welfare) cannot be construed as an exclusively judicial power, and as such, the
Chapter III requirements of the Constitution need not be complied
with.[12] Justice Dawson (with whom
McHugh J agreed) and Gummow J also concluded that Chapter III does not restrict
the scope of s 122 in any case.[13]
C. Implied Guarantee to Due Process of Law
Justices Dawson and McHugh agreed that the Constitution does not contain a
general guarantee of due process of law. Justice Dawson (with whom McHugh J
agreed) stated that, unlike the United
States Constitution, the Commonwealth
Constitution does not seek to establish personal liberty and does not contain a
guarantee of individual rights. Thus, the Constitution contains no general
guarantee of due process of law.[14]
Justice Gaudron stated that as the power to detain in custody is not necessarily
a judicial power, the power was not subject to a
requirement of due
process.[15]
D. Implied Guarantee of Legality
Chief Justice Brennan and Dawson, McHugh, Gaudron and Gummow JJ rejected
the notion of an implied guarantee of substantive legal equality
in the
Constitution.[16] Justice Toohey,
relying on his earlier joint decision with Deane J in Leeth v
Commonwealth,[17] dissented on
this view. Justice Toohey stated that there is an implied principle of equality
of treatment in the
Constitution.[18] However, Toohey J
held that it was not possible at this stage of the proceedings to determine
whether the Ordinance contravened
that
principle.[19]
E. Implied Freedom of Movement and Association
Justices Toohey and Gaudron recognised the existence of an implied freedom
of movement and association in the Constitution, which also confined the
operation of s 122.[20] Justice
Toohey commented that the question of whether the Ordinance contravened the
implied freedoms is a question of whether the
provisions were disproportionate
to what was reasonably necessary for the protection of the people to whom the
Ordinance applied.
However, Toohey J held that at this stage of the
proceedings, it was not possible to answer the
question.[21] Likewise, Gaudron J
refrained from answering the question because it was first necessary to
determine the veracity of the Commonwealth’s
plea that the Ordinance was
enacted “for the purpose of the protection and preservation of persons of
the Aboriginal race”.[22]
This plea was the subject of reserved question 3, which did not need to be
answered.[23] Justice McHugh
recognised the existence of an implied freedom of movement and association in
the Constitution, which were necessary to guarantee the implied right of
political communication in the
Constitution.[24] However, McHugh J
held that:
... from the time when the 1918 Ordinance was enacted until it was repealed
in 1957, the residents of the Northern Territory had no
part to play in the
constitutionally prescribed system of government or in the procedure for
amending the Constitution ...
Indeed, it was not until 1977 that the residents of the Northern Territory
finally received constitutional as well as democratic recognition
by being given
the right to vote in a referendum to amend the Constitution ...
For these reasons, nothing in the Constitution implied that the plaintiffs
had any freedom or immunity from laws affecting their common law rights of
associations or travel during
the life of the 1918
Ordinance.[25]
Justices Dawson and Gummow rejected the notion of an implied freedom of movement and association,[26] whilst Brennan CJ did not need to decide the issue, as his Honour concluded that it would have no effect either way.[27] Chief Justice Brennan held that the impugned provisions were not directed to impeding protected communications. Accordingly, even if there was an implied constitutional right to freedom of movement and association, such a constitutional requirement would not have invalidated the impugned provisions.[28]
Justices Dawson and Gummow rejected the notion of an implied freedom of movement and association,[26] whilst Brennan CJ did not need to decide the issue, as his Honour concluded that it would have no effect either way.[27] Chief Justice Brennan held that the impugned provisions were not directed to impeding protected communications. Accordingly, even if there was an implied constitutional right to freedom of movement and association, such a constitutional requirement would not have invalidated the impugned provisions.[28]
F. Genocide[29]
All six judges agreed that the Ordinance did not authorise
genocide.[30] Chief Justice Brennan
held that none of the impugned provisions could be taken to have authorised acts
done for the purpose or with
the intention of causing harm. It was therefore
unnecessary to consider whether the Ordinance was inconsistent with an implied
constitutional
freedom or immunity from any law or executive act having the
effect of the destruction of a racial or ethnic
group.[31]
Justice Dawson (with whom McHugh J agreed) stated that there was nothing in the Ordinance which conferred authority to commit acts of genocide.[32] Justice Dawson also stated that consistent with the doctrine of parliamentary supremacy, there was no constitutional restriction on s 122 of the Constitution not to authorise acts of genocide.[33] He commented:
Justice Dawson (with whom McHugh J agreed) stated that there was nothing in the Ordinance which conferred authority to commit acts of genocide.[32] Justice Dawson also stated that consistent with the doctrine of parliamentary supremacy, there was no constitutional restriction on s 122 of the Constitution not to authorise acts of genocide.[33] He commented:
... the legislative power of parliament to make laws for the government of
the territories is sovereign and, subject to the possibility
of any specific
limitation to be found elsewhere in the Constitution, there is nothing which
places rights of any description beyond its
reach.[34]
Justice Toohey held that there was nothing in the Ordinance, according to the ordinary principles of construction, which would justify a conclusion that it authorised acts “with intent to destroy, in whole or in part the plaintiffs’ racial group”.[35] He added, “it is necessary to keep in mind that it is however the validity of the Ordinance, not any exercise of power under the Ordinance, which is the subject of these proceedings”.[36]
Justice Gaudron held that under the settled principles of statutory construction, the Ordinance did not authorise acts of genocide.[37] However, in contrast to Dawson J, Gaudron J was of the opinion that s 122 of the Constitution was restricted by prohibition against “laws authorising acts of genocide as defined in Part II of the Genocide Convention”.[38]
Justice Gummow held the actions authorised by the Ordinance did not amount to genocide as defined by the Genocide Convention.[39] Justice Gummow agreed with Dawson J, that reliance by the plaintiffs on customary international law as it related to genocide was “misplaced”.[40]
Justice Toohey held that there was nothing in the Ordinance, according to the ordinary principles of construction, which would justify a conclusion that it authorised acts “with intent to destroy, in whole or in part the plaintiffs’ racial group”.[35] He added, “it is necessary to keep in mind that it is however the validity of the Ordinance, not any exercise of power under the Ordinance, which is the subject of these proceedings”.[36]
Justice Gaudron held that under the settled principles of statutory construction, the Ordinance did not authorise acts of genocide.[37] However, in contrast to Dawson J, Gaudron J was of the opinion that s 122 of the Constitution was restricted by prohibition against “laws authorising acts of genocide as defined in Part II of the Genocide Convention”.[38]
Justice Gummow held the actions authorised by the Ordinance did not amount to genocide as defined by the Genocide Convention.[39] Justice Gummow agreed with Dawson J, that reliance by the plaintiffs on customary international law as it related to genocide was “misplaced”.[40]
G. Freedom of Religion
Chief Justice Brennan held that s 122 of the Constitution restricted s 116
(freedom to exercise any religion) but “none of the impugned laws on its
proper construction can be seen as law for prohibiting
the free exercise of a
religion”.[41] Justice Toohey
left open the question of whether s 116 restricted s 122 but, in any case could
not find an intention to restrict the free exercise of religion in the
Ordinance.[42] Justice Gummow held
that s 122 was subject to s 116,[43]
but there was no breach by the
Ordinance.[44]
Justice Gaudron held that s 122 should be read as being subject to s 116.[45] However, her Honour did not come to a conclusion as to whether or not there was a restriction of the free exercise of religion in the case in hand.
Justice Dawson (with whom McHugh J agreed), held that the Territories are not parts of the Commonwealth, but rather are parts annexed to the Commonwealth and subordinate to it. Accordingly, Chapter V of the Constitution does not apply to the Territories. Similarly, s 116 of the Constitution does not restrict the operation of s 122.[46] Justice Dawson added:
Justice Gaudron held that s 122 should be read as being subject to s 116.[45] However, her Honour did not come to a conclusion as to whether or not there was a restriction of the free exercise of religion in the case in hand.
Justice Dawson (with whom McHugh J agreed), held that the Territories are not parts of the Commonwealth, but rather are parts annexed to the Commonwealth and subordinate to it. Accordingly, Chapter V of the Constitution does not apply to the Territories. Similarly, s 116 of the Constitution does not restrict the operation of s 122.[46] Justice Dawson added:
... that if I am wrong in this conclusion, I would [hold] ... that the 1918
Ordinance contains nothing which would enable it to be
said that it is a law for
prohibiting the free exercise of
religion.[47]
H. Actions for Damages for Infringement of Constitutional Rights
Chief Justice Brennan and Gaudron J found no basis upon which an action for
damages would arise upon the breach of a constitutional
right.[48] Justice Toohey also
answered in the negative without giving
reasons,[49] whilst Dawson, McHugh
and Gummow JJ decided there was no need to answer.
I. Limitation Periods
Justice Gaudron held that s 79 of the Judiciary Act 1903 (Cth)
should be construed as intended to apply to the High Court, notwithstanding that
the language of the section does not adequately
reflect the nature of the
jurisdiction or the manner of its exercise. Accordingly, ss 64 and 79 of the
Judiciary Act 1903 (Cth) ‘pick up’ the provisions of the
Limitation Act 1981 (NT) and make them applicable to the
plaintiffs’ actions.[50]
IV. COMMON LAW ACTIONS
In general, the negative outcome for the plaintiffs in Kruger and
Bray, will have no significant effect for actions based on common law
rights. The Kruger and Bray cases involved challenges to the
constitutional validity of the Ordinance, not to any exercise of power under the
Ordinance. The
legal basis of the actions concerned the constitutional validity
of the impugned provisions, not “whether the actions complained
of were
authorised by those
provisions”.[51]
However, common law actions that depend on establishing constitutional invalidation of the removal and detention statutes in order to argue wrongful imprisonment and/or deprivation of liberty,[52] are significantly affected by the Kruger and Bray decisions. In fact, solicitors for plaintiffs with actions currently before the Federal Court in Darwin have amended their pleadings to remove the Kruger and Bray constitutional arguments/wrongful imprisonment and deprivation of liberty nexus.
The Kruger and Bray decisions reinforce the notion that in any litigation including common law actions, it is the community standards at the time of the exercise of the legislative power and/or ‘welfare care’ under challenge that is relevant. Chief Justice Brennan and Dawson J commented in Kruger and Bray that one must look to the standards of the time. Justice Dawson stated that:
However, common law actions that depend on establishing constitutional invalidation of the removal and detention statutes in order to argue wrongful imprisonment and/or deprivation of liberty,[52] are significantly affected by the Kruger and Bray decisions. In fact, solicitors for plaintiffs with actions currently before the Federal Court in Darwin have amended their pleadings to remove the Kruger and Bray constitutional arguments/wrongful imprisonment and deprivation of liberty nexus.
The Kruger and Bray decisions reinforce the notion that in any litigation including common law actions, it is the community standards at the time of the exercise of the legislative power and/or ‘welfare care’ under challenge that is relevant. Chief Justice Brennan and Dawson J commented in Kruger and Bray that one must look to the standards of the time. Justice Dawson stated that:
... a shift in view upon the justice of morality of those measures taken
under an Ordinance which was repealed over 40 years ago does
not itself point to
the constitutional invalidity of that
legislation.[53]
Thus in any common law action, it is the standards of the period under question that is the relevant standard. Standards of child care may have changed over the period of the early 1900’s to the late 1960’s, where the systematic removal policies and practices were operating. Practices that may have been acceptable forty years ago, may be totally unacceptable today. However, it is what was acceptable at the period under challenge which the court will focus on, not today’s standards. Therefore, for example, in an action for breach of fiduciary duty, the courts will look to contemporary child care standards of the relevant period of the action before them. Although it should be noted that evidence presented to the National Inquiry detailed incidents of excessive and violent punishment and sexual abuse, that could not have been accepted by any contemporary standards this century.[54]
Thus in any common law action, it is the standards of the period under question that is the relevant standard. Standards of child care may have changed over the period of the early 1900’s to the late 1960’s, where the systematic removal policies and practices were operating. Practices that may have been acceptable forty years ago, may be totally unacceptable today. However, it is what was acceptable at the period under challenge which the court will focus on, not today’s standards. Therefore, for example, in an action for breach of fiduciary duty, the courts will look to contemporary child care standards of the relevant period of the action before them. Although it should be noted that evidence presented to the National Inquiry detailed incidents of excessive and violent punishment and sexual abuse, that could not have been accepted by any contemporary standards this century.[54]
V. CONCLUSION
Whilst the decisions in Kruger and Bray were a severe blow to
the plaintiffs in those cases, its impact on future court actions should not be
overstated. Most common law
actions, for example, breaches of fiduciary duty,
negligence and statutory duties are not effected.
Indigenous litigants and their legal representatives have many other problems upon which they can expend their energies. Obstacles presented by limitation statutes and evidentiary concerns will prevent time being spent on contemplating what could have been if Kruger and Bray were decided differently.
Indigenous litigants and their legal representatives have many other problems upon which they can expend their energies. Obstacles presented by limitation statutes and evidentiary concerns will prevent time being spent on contemplating what could have been if Kruger and Bray were decided differently.
[*] Lecturer at Law at
Murdoch
University.
[1] Herein referred to as the National Inquiry.
[2] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997. Herein referred to as the National Report.
[3] [1997] HCA 27; 146 ALR 126. Hereafter referred to as Kruger and Bray.
[4] Herein referred to as the Ordinance.
[5] For example, refer to “Judges Reject Claim Over Stolen Children”, The Western Australian, 1 August 1997.
[6] Upon acquiring exclusive jurisdiction over the Northern Territory under the Northern Territory Acceptance Act 1910 (Cth), the Commonwealth enacted the Northern Territory (Administration) Act 1910 (Cth), relying on s 122 of the Constitution. Section 13(1) of that Act empowered the Governor-General to make Ordinances having the force of law in the Northern Territory. Under ss 13(2) and (3) of the Act, Ordinances were required to be laid before the Houses of Parliament, either of which had the power of disallowance. It was pursuant to s 13(1) of the Northern Territory (Administration) Act 1910 (Cth) that the Governor-General made the Ordinance.
[7] Both cases made the same assertions.
[8] Note 3 supra at 184-5.
[9] The factual issues in the actions before the High Court have not been tried. From an earlier interlocutory hearing, Brennan CJ reserved seven ‘questions of law arising on the pleadings in each of the cases for the opinion of the Full Court’ (Kruger v The Commonwealth (1995) 69 ALR 885). If the plaintiffs failed on questions one and two, which they did, the other five questions became unnecessary to answer. The first two questions were in the following terms:
Q1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?
Q2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by:
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?
[10] Refer to note 3 supra at 138 per Brennan CJ, at 147 per Dawson J, at 167 per Toohey J, at 187 per Gaudron J and at 218 per Justice McHugh.
[11] Ibid at 198.
[12] Ibid at 154 per Dawson J, at 172 per Toohey J, at 192-3 per Gaudron J, at 218 per McHugh J and at 233 per Justice Gummow.
[13] Ibid at 154 per Dawson J, at 218 per McHugh J and at 239-43 per Justice Gummow.
[14] Ibid at 154 per Dawson J, at 218 per Justice McHugh.
[15] Ibid at 193-4.
[16] Ibid at 141 per Brennan CJ, at 155-8 per Dawson J, at 195 per Gaudron J, at 218 per McHugh J and at 227-8 per Justice Gummow.
[17] (1992) 174 CLR 455.
[18] Note 3 supra at 179-82.
[19] Ibid at 182.
[20] Ibid at 175-8 per Toohey J and at 195-201 per Justice Gaudron.
[21] Ibid at 179.
[22] Ibid at 201.
[23] Reserved question 3: If yes to question 1 or question 2, are any and which matters pleaded in subparagraphs (d) and (c) of paragraph 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?
[24] Note 3 supra at 218.
[25] Ibid at 219.
[26] Ibid at 160 per Dawson J and at 230 per Justice Gummow.
[27] Ibid at 141-2.
[28] Ibid.
[29] Pursuant to Article II of the Convention on the Prevention and Punishment for the Crimes of Genocide (‘Genocide Convention’), genocide is defined inter alia to mean:
... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: ...
(d) Imposing measures, intended to prevent births within the group;
(e) Forcible transferring of children of the group to another group.
[30] Ibid at 137 per Brennan CJ, at 161-2 per Dawson J, at 175 per Toohey J, at 190 per Gaudron J, at 220 per McHugh J and at 230-2 per Justice Gummow.
[31] Ibid at 137.
[32] Ibid at 161-2 per Dawson J and at 220 per Justice McHugh.
[33] Ibid at 162-3.
[34] Ibid at 163.
[35] Ibid at 175.
[36] Ibid at 175.
[37] Ibid at 190.
[38] Ibid, compare with Dawon J at 162-3.
[39] Ibid at 232.
[40] Ibid.
[41] Ibid at 138.
[42] Ibid at 173.
[43] Ibid at 238.
[44] Ibid at 233.
[45] Ibid at 202-3.
[46] Ibid at 152 per Dawon J and at 218 per Justice McHugh.
[47] Ibid at 153.
[48] Ibid at 142 per Brennan CJ and at 205 per Justice Gaudron.
[49] Ibid at 182.
[50] Ibid at 216-17.
[51] Ibid at 167 per Justice Dawson. Executive power granted by statute will be bound by constitutional limitation and guarantees. See James v Cowan [1932] HCA 21; (1932) 47 CLR 386 at 396.
[52] Such arguments were made by the plaintiffs in Kruger and Bray.
[53] Note 3 supra at 147.
[54] Refer to note 2 supra, and T Buti, After the Removal, Aboriginal Legal Service of Western Australia, (1996).
[1] Herein referred to as the National Inquiry.
[2] Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, 1997. Herein referred to as the National Report.
[3] [1997] HCA 27; 146 ALR 126. Hereafter referred to as Kruger and Bray.
[4] Herein referred to as the Ordinance.
[5] For example, refer to “Judges Reject Claim Over Stolen Children”, The Western Australian, 1 August 1997.
[6] Upon acquiring exclusive jurisdiction over the Northern Territory under the Northern Territory Acceptance Act 1910 (Cth), the Commonwealth enacted the Northern Territory (Administration) Act 1910 (Cth), relying on s 122 of the Constitution. Section 13(1) of that Act empowered the Governor-General to make Ordinances having the force of law in the Northern Territory. Under ss 13(2) and (3) of the Act, Ordinances were required to be laid before the Houses of Parliament, either of which had the power of disallowance. It was pursuant to s 13(1) of the Northern Territory (Administration) Act 1910 (Cth) that the Governor-General made the Ordinance.
[7] Both cases made the same assertions.
[8] Note 3 supra at 184-5.
[9] The factual issues in the actions before the High Court have not been tried. From an earlier interlocutory hearing, Brennan CJ reserved seven ‘questions of law arising on the pleadings in each of the cases for the opinion of the Full Court’ (Kruger v The Commonwealth (1995) 69 ALR 885). If the plaintiffs failed on questions one and two, which they did, the other five questions became unnecessary to answer. The first two questions were in the following terms:
Q1. Is the legislative power conferred by section 122 of the Constitution or the power to enact the Ordinances and regulations referred to in paragraphs 7-12 inclusive of the Amended Statement of Claim so restricted by any and which of the rights, guarantees, immunities, freedoms or provisions referred to in paragraph 29 of the Amended Statement of Claim as to invalidate the Acts, Ordinances and regulations referred to in paragraphs A, B, C and D of the claim to the extent pleaded in those paragraphs?
Q2. Does the Constitution contain any right, guarantee, immunity, freedom or provision as referred to in paragraph 29 of the Amended Statement of Claim, a breach of which by:
(a) an officer of the Commonwealth; or
(b) a person acting for and on behalf of the Commonwealth;
gives rise to a right of action (distinct from a right of action in tort or for breach of contract) against the Commonwealth sounding in damages?
[10] Refer to note 3 supra at 138 per Brennan CJ, at 147 per Dawson J, at 167 per Toohey J, at 187 per Gaudron J and at 218 per Justice McHugh.
[11] Ibid at 198.
[12] Ibid at 154 per Dawson J, at 172 per Toohey J, at 192-3 per Gaudron J, at 218 per McHugh J and at 233 per Justice Gummow.
[13] Ibid at 154 per Dawson J, at 218 per McHugh J and at 239-43 per Justice Gummow.
[14] Ibid at 154 per Dawson J, at 218 per Justice McHugh.
[15] Ibid at 193-4.
[16] Ibid at 141 per Brennan CJ, at 155-8 per Dawson J, at 195 per Gaudron J, at 218 per McHugh J and at 227-8 per Justice Gummow.
[17] (1992) 174 CLR 455.
[18] Note 3 supra at 179-82.
[19] Ibid at 182.
[20] Ibid at 175-8 per Toohey J and at 195-201 per Justice Gaudron.
[21] Ibid at 179.
[22] Ibid at 201.
[23] Reserved question 3: If yes to question 1 or question 2, are any and which matters pleaded in subparagraphs (d) and (c) of paragraph 29 of the Amended Defence relevant to the existence, scope or operation at any material time of any and which of the rights, guarantees, immunities, freedoms and provisions?
[24] Note 3 supra at 218.
[25] Ibid at 219.
[26] Ibid at 160 per Dawson J and at 230 per Justice Gummow.
[27] Ibid at 141-2.
[28] Ibid.
[29] Pursuant to Article II of the Convention on the Prevention and Punishment for the Crimes of Genocide (‘Genocide Convention’), genocide is defined inter alia to mean:
... any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: ...
(d) Imposing measures, intended to prevent births within the group;
(e) Forcible transferring of children of the group to another group.
[30] Ibid at 137 per Brennan CJ, at 161-2 per Dawson J, at 175 per Toohey J, at 190 per Gaudron J, at 220 per McHugh J and at 230-2 per Justice Gummow.
[31] Ibid at 137.
[32] Ibid at 161-2 per Dawson J and at 220 per Justice McHugh.
[33] Ibid at 162-3.
[34] Ibid at 163.
[35] Ibid at 175.
[36] Ibid at 175.
[37] Ibid at 190.
[38] Ibid, compare with Dawon J at 162-3.
[39] Ibid at 232.
[40] Ibid.
[41] Ibid at 138.
[42] Ibid at 173.
[43] Ibid at 238.
[44] Ibid at 233.
[45] Ibid at 202-3.
[46] Ibid at 152 per Dawon J and at 218 per Justice McHugh.
[47] Ibid at 153.
[48] Ibid at 142 per Brennan CJ and at 205 per Justice Gaudron.
[49] Ibid at 182.
[50] Ibid at 216-17.
[51] Ibid at 167 per Justice Dawson. Executive power granted by statute will be bound by constitutional limitation and guarantees. See James v Cowan [1932] HCA 21; (1932) 47 CLR 386 at 396.
[52] Such arguments were made by the plaintiffs in Kruger and Bray.
[53] Note 3 supra at 147.
[54] Refer to note 2 supra, and T Buti, After the Removal, Aboriginal Legal Service of Western Australia, (1996).